Pace Environmental Notes, the weblog of the Pace University School of Law’s Environmental Collection, is a gateway to news, recent books and articles, information resources, and legal research strategies relevant to the fields of environmental, energy, land use, animal law and other related disciplines.

Wednesday, June 29, 2011

This report from the Nuclear Waste Technical Review Board "is not meant to be an assessment of the licenseability of a Yucca Mountain repository. If licensing goes forward, the Nuclear Regulatory Commission will determine whether a license should be granted. ... The purpose of this report, then, is to extract from the history of the Yucca Mountain program, and to a lesser degree from other programs, some of the technical “lessons learned” that may apply to future U.S. programs for waste management and waste disposal."

"The United States has a variety of waste forms with different chemical and physical properties because of their generation through defense activities, reactor-development work, and electricity production. Specialized deep geologic disposal methods that take advantage of these differences may be reasonable to consider. A possible scenario is using deep geologic repositories that permit retrieval of spent nuclear fuel and boreholes that preclude retrieval of waste forms that offer few or no further recycling advantages, such as vitrified high-level waste."

"The partnership offers an opportunity to realize urban waterway and watershed revitalization goals that are larger than, and beyond the resources of any individual community, agency, or mission. We can deliver solutions to help urban communities enjoy and prosper from healthy waters through collaboration with other agencies and the communities we collectively serve. The Department of the Army for Civil Works is committed to the vision, mission, and principles of this partnership. We are ready to assist in securing more vibrant and sustainable urban waters."

The 2012 international Planet Under Pressure conference will provide a comprehensive update of the pressure planet Earth is now under. The conference will discuss solutions at all scales to move societies on to a sustainable pathway. It will provide scientific leadership towards the 2012 UN Conference on Sustainable Development - Rio+20.

Key AimsA state of the planet assessment and solutions for a sustainable future 2500 participants combining global-change science and policy, business and development communities.

Identifying opportunities for enhanced partnerships between global change science and policy, industry and the public

A new vision for international research

Building on a comprehensive update of knowledge of the Earth system and the pressure it is under, the Planet Under Pressure conference will present and debate new insights into potential opportunities and constraints for innovative development pathways based on novel partnerships.

"Renowned environmentalist and Pace University senior fellow John Cronin was presented with the prestigious Jefferson Award in a ceremony in Washington, DC, Tuesday night. Cronin was honored for a career spanning four decades "on the front line of water quality issues." The Jefferson Award, now in its 39th year, is named for Thomas Jefferson and was founded by former first lady Jacqueline Kennedy Onassis as a "Nobel Prize for public service." Two other recipients of the Jefferson Award this year were Supreme Court Justice Ruth Bader Ginsburg and actress Marlo Thomas.

In its presentation, the Jefferson Awards Board of Selectors said Cronin "has dedicated his career to water and environmental affairs. Described as 'Hero for the Planet' and 'equal parts detective, scientist and public advocate', his efforts have inspired a legacy of programs across the globe, fighting pollution on six continents."

"The primary goal of the annual State of the Climate collection of articles is to document the weather and climate events of the most recent calendar year and put them into accurate historical perspective, with a particular focus on unusual or anomalous events...This edition presents contributions from the largest body of authors to date and brings several new sections to the readership. The year 2010 was notable for its globally-averaged warmth and for the far-reaching impacts related to significant behavior of several modes of climate variability. These modes have unique influences and impacts throughout the climate system."

On June 20, the U.S. Supreme Court issued its highly anticipated ruling in American Electric Power Co., Inc., et al. v. Connecticut (AEP), the first climate change nuisance lawsuit to reach the high court. In an opinion written by Justice Ruth Bader Ginsburg, the Supreme Court ruled 8-0 that the Clean Air Act and Environmental Protection Agency regulations authorized by the act displace the federal common law cause of action. Reversing the U.S. Court of Appeals for the Second Circuit ruling, the high court held federal common law nuisance claims cannot be brought against utilities for their greenhouse gas emissions. The Second Circuit had allowed eight states, New York City, and three land trusts to move forward with claims against the utility company defendants alleging they have created a public nuisance by contributing to global warming.

Significantly, the Supreme Court split 4-4 on the issue of whether the petitioners demonstrated they had standing to bring the claim and affirmed the Second Circuit's ruling that they did. The Supreme Court did not address issues raised by petitioners at oral argument and in briefing regarding the political doctrine defense. It remanded the case for consideration of plaintiffs’ state law nuisance claim, which was not before the court on this appeal. The high court suggested that on remand the court should consider whether the state law cause of action is preempted. Clearly, the ruling in AEP will have broad implications for U.S. industries that emit greenhouse gases.

This 90-minute webinar, a second in a series, featuring Christina M. Carroll , J. Randolph Evans, and Joanne Zimolzak of McKenna Long & Aldridge LLP, is designed to help attendees:

•Become knowledgeable about the key points raised and outcomes resulting from the U.S. Supreme Court decision in the AEP case•Analyze the impact and implications of the standing holding in the AEP case•Understand how ongoing litigation may be impacted by the decision, including the effect on the outcome of a related case, Kivalina v. ExxonMobil Corp. •Consider the interrelationships between the AEP decision and executive and legislative branch greenhouse gas emission policies, and •Understand what the AEP case addressed and what questions remain

Monday, June 20, 2011

Can transformations in the design of our communities, streets, and buildings inspire people to be more physically active and make our communities healthier, sustainable, and more economically resilient? This webinar will introduce the concept of active design and explore how communities across the country are encouraging walking, bicycling, stair climbing, and active recreation. Designing our communities to encourage greater physical activity is a way to counteract the most pressing health, environmental, and economic challenges of our time – from the epidemics of obesity and chronic diseases like diabetes, to oil consumption and pollution from vehicle use, to spending on healthcare costs. Representatives from New York City, Augusta, Georgia, and the Mayors’ Institute on City Design will present health evidence and strategies included in the award-winning Active Design Guidelines (www.nyc.gov/adg), as well as successes and lessons learned in creating healthier communities.

Thursday, June 2, 2011

This Government Accountability Report (GAO-11-734T), dated June 2, 2011, states that "GAO is concerned with Interior's ability to undertake this reorganization while meeting its revenue collection and oil and gas oversight responsibilities.

Balancing Responsibilities: GAO has reported that Interior has experienced several challenges with meeting its responsibilities for providing for the development of oil and gas resources while managing public lands for other uses, including wildlife habitat. For example, in September 2009, GAO reported that BLM's use of categorical exclusions under Section 390 of the Energy Policy Act of 2005 was frequently out of compliance with the law and BLM's internal guidance.

As a result, GAO recommended that BLM take steps to improve the implementation of Section 390. BLM has taken steps to address these recommendations, but it has not yet implemented all of them. Human Capital: GAO has reported that BLM and MMS have encountered persistent problems in hiring, training, and retaining sufficient staff to meet their oversight and management responsibilities for oil and gas operations. For example, in March 2010, GAO reported that BLM and MMS experienced high turnover rates in key oil and gas inspection and engineering positions responsible for production verification activities. As a result, Interior faces challenges meeting its responsibilities to oversee oil and gas development on federal leases, potentially placing both the environment and royalties at risk.

Revenue Collection: While federal oil and gas resources generate billions of dollars in annual revenues, past GAO work has found that Interior may not be properly assessing and collecting these revenues. In September 2008, GAO reported that Interior collected lower levels of revenues for oil and gas production in the deep water of the U.S. Gulf of Mexico than all but 11 of 104 oil and gas resource owners whose revenue collection systems were evaluated in a comprehensive industry study. As GAO recommended, Interior is undertaking a comprehensive assessment of its revenue collection policies and processes--the first in over 25 years. Interior expects to complete this study later this year.

Development of Existing Leases: In October 2008, GAO reported that Interior could do more to encourage the development of existing oil and gas leases. Federal leases contain one provision--increasing rental rates over time for offshore 5-year leases and onshore leases--to encourage development. In addition to escalating rental rates, states undertake additional efforts to encourage lessees to develop oil and gas leases more quickly, including shorter lease terms and graduated royalty rates. Recently, Interior has stated its intent to pursue legislation establishing a per acre fee on non-producing leases to encourage development of federal leases.

CHINA.Jiang, Xiaoyi. How do clean development mechanism projects contribute to sustainable development in China: an assessment of the performance of the CDM in China. 41 Envtl. L. Rep. News & Analysis 10260-10275 (2011).

Tarlock, Dan. How well can water law adapt to the potential stresses of global climate change? 14 U. Denv. Water L. Rev. 1-45 (2010).

WATER RESOURCES.Pilz, Robert David. Lessons in water policy innovation from the world’s driest inhabited continent: using water allocation plans and water markets to manage water scarcity. 14 U. Denv. Water L. Rev. 97-130 (2010).

This Government Accountability Office report (GAO-11-731T), dated June 1, 2011, finds that uncertainties exist about the direction of the nation’s policy for nuclear waste disposal. Under NWPA, DOE investigated Yucca Mountain as a site for a repository. In 2002, DOE recommended the site to the President and in 2008 submitted a license application to NRC.

DOE is now seeking to withdraw the application from NRC’s Atomic Safety and Licensing Board. DOE did not cite technical or safety issues but stated that Yucca Mountain is not a workable option because of a lack of public acceptance by the people of Nevada. On June 29, 2010, the board denied DOE’s motion, ruling that NWPA requires DOE to continue the licensing effort.

The NRC commissioners announced they might consider reviewing the board’s decision, but as of May 26, 2011, no review had been announced. Separately, state and local governments and a private party filed suit in federal court against DOE and NRC in an effort to stop the repository termination. The court has not yet ruled. Amid this uncertainty, DOE took steps to shut down Yucca Mountain by September 30, 2010. DOE also established a Blue Ribbon Commission to evaluate alternatives for nuclear waste disposal, which plans to report by January 2012.

Three primary waste storage options offer benefits but also face challenges, including high costs. Two options are for interim storage—continued on-site or centralized storage—which could allow time for research into new approaches that might have wider public acceptance than the Yucca Mountain permanent repository. Continued on-site storage would require less effort to implement since it is the current method of waste storage.

However, this option could trigger significant financial liabilities as a result of industry lawsuits stemming from DOE’s failure to accept the waste in 1998, as required under NWPA. The federal government has already paid $956 million, and future liabilities are estimated to be at least $15.4 billion through 2020. DOE and the Navy also might not meet certain commitments to remove their waste from two states, which could bring penalties and a suspension of the Navy’s shipments of spent fuel, raising concerns about the Navy’s ability to refuel its nuclear-powered warships.

The second interim option, centralized interim storage, may face challenges because DOE states that it currently has no authority to implement this option.

The third option, a geologic repository, is widely considered the only currently feasible option for permanently disposing of nuclear waste. DOE has faced challenges in identifying an acceptable site for permanent geologic disposal. Restarting the search would likely take decades and cost billions of dollars. Published reports and interviews--with federal, state, and local government officials and representatives of various organizations--suggest two broad lessons that can be learned from past nuclear waste management efforts.